Opinion
13-P-1579
01-14-2015
COMMONWEALTH v. DAVID P. MURPHY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David Murphy, was convicted of negligent operation of a motor vehicle and operating a vehicle and leaving the scene after causing personal injury after an automobile crash in an intersection in 2010. He challenges certain testimony as hearsay and argues that the judge's instructions to the jury were insufficient. We affirm.
Background. On the morning of July 26, 2010, Robert Ruffin was driving a mini-van north in Wellesley. He stopped at a red light at a four-way intersection with lights in each direction. Ruffin proceeded north when his light turned green. He crossed the first lane of stopped eastbound traffic at the intersection when he saw an eastbound vehicle approach on Worcester Street, also known as Route 9. This vehicle struck his vehicle on the front left side and spun his car 180 degrees. Ruffin testified at trial that the car, which continued east without slowing, was a "black or grey SUV, a small SUV like a Nissan Pathfinder or a Honda Passport." The car's sole occupant was an "older white male" driver, according to Ruffin, and did not stop after the impact. The front left end of Ruffin's car was heavily damaged. Ruffin emerged from the car with pain across his body and went to a hospital by ambulance. Other witnesses provided similar descriptions of the accident.
Karen Wolfson was travelling east on Worcester Street and had stopped at the red light at the intersection. She testified that she saw "a dark SUV" on her right side go through the red light, hit Ruffin's vehicle, and keep going. Wolfson said that the vehicle "flew through" the intersection at an estimated speed of as much as eighty miles per hour. Wolfson said that she saw "an older Caucasian man" driving the vehicle, which had a spare tire on the back. Mark Listewnik was headed north on Oakland Street and was also stopped at the red light. He saw Ruffin's car proceed into the intersection after Ruffin's light turned green, and then saw an eastbound "dark SUV" strike Ruffin's vehicle and continue.
Less than a mile away, off a Route 9 exit ramp, Officer Connolly saw a "dark SUV" with a spare tire on the back. The vehicle, in the parking lot of a daycare center, had significant front-end damage and was leaking fluids. He testified that the vehicle was a Honda Passport registered to the defendant.
Officer Cunningham, who was also investigating, noticed that the hood of the vehicle was warm. Officer Cunningham learned from a registry check that the vehicle was registered to the defendant, who lived one block away. When he went to the residence, the defendant's mother answered the door, and the officer asked for the defendant. The defendant approached with what looked like a drop of blood on his sweatshirt. The defendant appeared to have difficulty walking. Officer Cunningham testified that the defendant was licensed to operate a vehicle at that time, and his breath did not smell of alcohol.
The transcript is unclear on whether the judge sustained the defendant's objection after the officer replied to the judge's question of what observations he made of the defendant's walk.
The defendant's mother testified in his defense that around the time of the accident, the defendant was sleeping downstairs, and she did not notice anyone leave the house. She stated that when the police arrived and she went to find him, he was asleep. On October 22, 2012, the jury returned guilty verdicts on both charges, and the defendant was sentenced.
Hearsay evidence. The defendant argues that Officer Connolly's testimony that he was the registered owner of the SUV was hearsay that caused prejudice. This argument is without merit because the testimony was merely cumulative.
We note at the outset that the defendant's strategy at trial was that he was not the driver of the car.
Improperly admitted hearsay evidence is not prejudicial if it is "merely cumulative of properly admitted evidence." Commonwealth v. Wilson, 427 Mass. 336, 348 (1998). Certified copies of motor vehicle registration records are admissible as evidence. G. L. c. 90, § 30. See Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 n.1 (2000).
Here, the Commonwealth entered in evidence certified records that showed that the defendant was the owner of the vehicle. See G. L. c. 90, § 30; Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27 n.1 (2000). Even if Officer Connolly's testimony was hearsay, the evidence was not prejudicial because it was "merely cumulative of properly admitted evidence." See Commonwealth v. Wilson, 427 Mass. 336, 348 (1998).
The defendant similarly argues that the term "t-boned" in Ruffin's medical records should have been redacted because it does not pertain to medical treatment under G. L. c. 233, § 79, and impermissibly bears on the question of liability.
The term "t-boned" describes the angle of impact in the accident as perpendicular. While this might well go to how the victim was injured and thus be admissible under Mass. G. Evid. § 803 (4) (2014), we need not address the issue because, even if we were to agree with the defendant's assertion, several witnesses described the angle of the collision as perpendicular. The term in the medical report was thus not prejudicial as it was "merely cumulative of properly admitted evidence." See Commonwealth v. Wilson, supra.
The defendant also challenges Ruffin's testimony that he told a doctor that he believed he had suffered a "brain injury." Once again, an argument could be made that, as the statement was not offered to prove the truth of the matter asserted (that he indeed suffered such an injury), see Commonwealth v. Fiore, 364 Mass. 819, 824 (1974), it was not hearsay. Even accepting the premise that a lay witness cannot self-diagnose in certain circumstances, see Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 324-325 (1998) (expert medical testimony necessary on highly technical medical issues), any error was minor given the defendant's trial strategy and the fact that the victim left by ambulance and was treated at a hospital.
Jury instructions. The defendant argues that the judge failed to include certain language from the model jury instructions regarding circumstantial evidence, guilt beyond a reasonable doubt, and his identification as the driver.
If a defendant fails to object, review of jury instructions is limited to examining whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Johnson, 405 Mass. 488, 489 (1989). A reviewing court views the instructions in their entirety and considers the over-all impact on the jury. Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980).
Here, the defendant did not object after the judge gave the instructions. No substantial risk of a miscarriage of justice exists as the judge adequately explained both the Commonwealth's burden of proof and circumstantial evidence, including that the jurors must "draw inferences and conclusions only from facts which have been proven to you" and that any "inferences and conclusions must be reasonable and natural." Taken as a whole and viewed in context, the instructions were sufficient.
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm the judgments.
So ordered.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: January 14, 2015.